HUDL copyright infringement issues
I tape a lot of high school sporting. Usually one customer hires me to do a video then they give a free copy to a friend who either uploads it to HUDL or youtube. I put a copyright watermark on all my videos now and regularly search for illegal use of my content.
Youtube is very good about removing content, however HUDL just told me that it is up to the user to delete the offending content, not them. Even though on their own website they claim you may submit a notification pursuant to the Digital Millennium Copyright Act.
In the future I am going to request all my customers sign a contract so this type of stuff is stopped dead in its tracks.
What do you guys do to stay one step ahead? Has anyone had to deal with HUDL?
[Timothy Nordmann] "I tape a lot of high school sporting. Usually one customer hires me to do a video then they give a free copy"
If you don't want your material on HUDL or YouTube, have you spoken with that customer that hires you and told him not to share it with someone who is uploading w/o your permission. Maybe he doesn't know where that the free copy he gives to his friend is winding up. A lot of problems are cleared up just by a friendly chat.
Of course, the guy hiring you might consider the whole matter a work for hire. The companies that hire me to shoot sports had me sign a work for hire agreement. Private individuals that I do the same thing for, it's more or less just a favor.
Yes, I definitely agree a lot of things are indeed cleared up by friendly chat. Indeed we have had a couple of conversation about not having this to end up on HUDL or YouTube, but it was all verbal.
To answer your question, I have spoken to the original customer, but he, nor his child uploaded the video to their HUDL account, it was other athletes who were not customers. The customer is very friendly and very sympathetic to my cause is also bummed so many other people are getting free use out of the video he paid for.
I went ahead and emailed them a formal request and provided the information needed under Digital Millennium Copyright Act and they have agreed to remove my content.
I posted my previous comment too soon. HUDL refused to delete the videos.
Is this a work for hire? If so, you don't have much say about where it ends up.
Frankly, I think you're doomed to a full-time job chasing pirates of the footage, this seems unproductive.
When you say you watermark the footage, exactly how are you doing that? Because I see an opportunity to let the file sharing become free advertising for your services, if your name stay attached to the footage wherever it goes.
Under my limited understanding of what work for hire means, I feel that this was not a work for hire arrangement. I am not an employee and there was no contract. As there was no mutual agreement, I feel this wasn't a work for hire arrangement.
I have a subscription based pricing system based on how many customers participate versus the number of games you subscribe to. So rarely does only one individual hire me.
In the lower right hand corner I write ©Nordmann Photography with an slight outline and a drop shadow, all set to a 40% opacity. Yes, it is good when it is shared, under the right circumstances.
I am ok with one of my customers sharing and uploading tidbits or highlight reels, but the person who has never ordered anything from me, and steals the video and then re-uploads it, that gets me kind of bent out of shape.
Another user on youtube actually covered up my watermark with a graphic and uploaded my video. But thankfully youtube has a quick and easy process to follow when someone does things like that.
If you want to spend the money, have an attorney send a strongly worded letter to HUDL and the offending persons.
In the future, if you post on VIMEO, you can also attach a password. That way only the persons you give the password will be able to view the video. They can email coaches, etc. with the password.
To make it a pain for the offenders, change the location of your watermark every few minutes to different parts of the video. Also, put a disclaimer at the beginning of your videos to clearly state that violation, or unauthorized useage may result in significant penalty up to $500,000 per play or to the full extent of the law.
Owner / Director / Editor
Video Marketing Toolbox.net
Canon 5D Mark II
with Final Cut Studio Adobe CS6 Production
But without a written clause to the contrary in the contract, in the US at least, you ARE assumed by courts to be a work for hire, so the client owns it all and your trademark or copyright claim isn't valid.
If you really want to retain ownership, you'd better consult an attorney. But IMO you're pursuing an outdated ownership model more appropriate to stills photogs than videographers.
Brent's roving watermark idea is a good one but not likely to be accepted on the actual master by the client, only on dubs. And your problem comes from the client sharing out the wrong version.
How I would approach this is to get paid in full up front before delivery, charging a little extra perhaps, but totally ignoring the piracy, because really, you can't stop it. Though sometimes you can put it to your advantage. PSY the South Korean star of the "Gangnam Style" video kept a policy of not fighting any piracy of his video. He is now ahead of Bieber as the most downloaded youtube artist ever, and the combination of legit paid downloads, prompted by viewers watching pirated and parody versions, plus the additional publicity and gigs generated by that visibility - made PSY a very rich dude indeed, able to live any style he likes now.
I know your sports videos serve a smaller niche. But have you considered partnering with the school to add in some promo/recruitment material about the schools into each package, in exchange for consideration (money). Especially with colleges this could more than offset your losses to piracy. Just an idea to think about.
I very much appreciate the input, as everybody is coming up with really helpful ideas.
I agree with your ideas of not fighting copyright, but for me only under certain circumstances. For instance. A football team hired me to cover their whole season, and they wanted to upload it to hudl. So I made a counter offer agreeing to waive my copyright, but in exchange I would get a larger fee to cover my loss of revenue. They were happy, and I was happy.
I make very little money on sports related work that comes through my office, so at times it feels silly to get upset over something I make so little money on. I wouldn't really care if a bride uploaded one of my videos, as they have paid a fair market price for my services and nobody feels cheated. But when an athletes parent simply steals a video, that means they got something, and I receive nothing. I am ok with existing customers sharing my videos online. In fact I would like to see more of it, especially when my watermark is on it.
Your story about PSY makes good sense and is a good alternative to the way I see things.
Going back to the work for hire issue here is the info I was going on and what constitutes work for hire. I am no expert by any means on this particular subject. I have copy and pasted that info below.
For a work created by an independent contractor (or freelancer) to qualify as a work for hire, three specific conditions found in the Copyright Act must be meet:
1. the work must be "specially ordered" or "commissioned." What this means is the independent contractor is paid to create something new (as opposed to being paid for an already existing piece of work); and
2. prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire; and
3. the work must fall within at least one of the following nine narrow statutory categories of commissioned works list in the Copyright Act:
(1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work (i.e., "a secondary adjunct to a work by another author" such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index
Where, geographically speaking, do you work? And where are you cutting and pasting this quotation from?
My experience and that of others I know is, any video job done for a client where you are not on salary, is a work for hire, unless otherwise specified in writing in some kind of memo or contract. And as a work for hire, the judge generally awards all ownership of the final product to the guy that paid you. You may hold on to materials you created and used in making that master, but he owns the master. Same as if you were a hot dog cart vendor and you hand me a hot dog when I hand you five bucks, unless we signed a a memo saying different, what happens to my dog after that is not within your control and you have nothing to say about it. You can keep the hot dog water and the five bucks.:-)
I work in the midwest.
It seems we have a different understand of when your work is automatically considered work for hire.
You wrote that if you are not salaried you are considered work for hire, when it seems in fact the salaried employee is the one who's work is automatically considered work for hire, not the independent contractor.
If you are an employee your employer automatically owns the copyright, but that relationship does not exist when you are a freelancer being commissioned to do work.
If you are an independent contractor then the rules and requirements (the ones I posted earlier) for your work to be considered work for hire need to be applied. Including a mutual agreeable contract.
Also your work would have to be meet ALL three of the following criteria to be considered a work for hire.
The work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
The work must be specially ordered or commissioned;
There must be a written agreement between the parties specifying that the work is a work made for hire.
Here are my sources for you to review.
To clarify. I am not employed by a company and I am not being hired by a company as an independent contractor to do work. I am a sole proprietor doing work directly for a customer.
From the first paragraph of your Wiki reference:
A work made for hire (sometimes abbreviated as work for hire or WFH) is a work created by an employee as part of his or her job, or a work created on behalf of a client where all parties agree in writing to the WFH designation. It is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The incorporated entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.
You listed a bunch of qualifiers from section 1 of the document that seem to bolster your point...
but the key I think you missed was this part:
The first situation applies only when the work's creator is an employee, not an independent contractor.
This is in line with all I have been told on the subject.
IF you are doing business as a video production company, it is more likely that you are an independent contractor and thus your project would fall under the heading of WFH, Again from your wikipedia reference:
Employer–employee relationship under agency law
If a work is created by an employee, part 1 of the copyright code’s definition of a work made for hire applies. To help determine who is an employee, the Supreme Court in CCNV v. Reid identified certain factors that characterize an “employer-employee” relationship as defined by agency law:
1 Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer’s location, and provides equipment or other means to create work)
2 Control by employer over the employee (e.g., the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee’s assistants)
3 Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee’s payment)
So I read the bolded parts as saying; If they supply you with gear and tell you specifics oh what and how to shoot, you're probably an employee... if you are the one with a video company, going to the games and shooting with your own gear and making all the key decisions on how the video is made, and they are just giving you a check, and you are not on salary there or working in their offices and getting benefits and doing "other duties as assigned"...... you may be a redn-, I mean, a Work-For-Hire.
Now I will stipulate that, to my mom's eternal regret, I am in fact not a lawyer. But this is how I've always read the language on this topic, and it is how everybody I've ever spoken to on the topic sees it. However, I'm willing to be proven wrong, because that's how we learn. No hard feelings meant or taken.
But if I'm right... and you try to sue someone using the proposition you own what you gave the client - you might be in trouble, is my inexpert opinion.
It seems as if were having a failure to have a meeting of the minds here. There obviously is no employer employee relationship as none of the criteria you listed were met. In order for an independent contractor to be considered work for here there has to be a contract and in this case there was no contract. I appreciate your input, but it seems we are both at an impasse, and that is ok. I appreciate your input anyway. It is rare that I get to exchange thoughts with other professions and I am very grateful for that opportunity.
OK, well.... good luck with that.
Some battles really aren't worth fighting. Even if you win them, they can damage your reputation and make you seem like someone that's hard to work with. In business, you want to avoid acquiring a bad reputation, especially when you really are a good guy.
I don't make much money shooting sports either. Long ago when I worked in retail, work like my shooting sports is called a "loss leader." You offer something at a low price to bring customers into the store and they wind up buying some other stuff too.
Low paying sports gigs are really just part of marketing my business. I get noticed by business owners that are members of the school booster clubs etc. It's a lot like doing pro-bono work for local charities. People see you around, form a good impression, and a small percentage either book you or give your a positive referral.
This is the way that sports (especially Football) is headed -well, actually, it's there already.
The best bet is to set your price where you are comfortable with surrendering the footage;
get friendly and professional with the coaching staff (even if a parent is paying);
assure them of your integrity and the benefit of uploading original HD footage (720p in the end) to Hudl;
have them set you up as an admin coach so you can upload the footage (couldn't be easier using Hudl Mercury)
-The difference of SD to HD will not be lost on them
-Additional option - create a 5-10 second Ad (still or video) in same format as the video from cam and add that to your card before uploading; move it to the top of the playlist after it's uploaded - this way it's the first play they see when viewing your footage and you can plug editing and other coverage. The highlighting tools on Hudl are okay but not what we can do.
Make an icon for your ID on Hudl so the players get familiar with your logo when you share footage of an event.
Ya gotta roll with it. IMO.
DVDs suck anyway and there are few BluRay takers in my experience.
Watermarking makes it a pain.
Mark I agree with everything you said. You had a lot of great ideas.
I do have an update to offer. For better or worse this is how the situation panned out.
A customer tried to coerce me into giving him a good price on all the game tapes and if I didn't give him the price he demanded he threatened to download them off HUDL for free.
Long story short I emailed and phoned HUDL's legal department and a phone call to the school's athletic dept and after a long back and forth they HUDL and the coach agreed to take the videos down.
I really wouldn't of said anything about it but when a potential customer threatens to steal something I had to act.
Thanks again for your input Mark, I like it.
This is an older thread but the topic is still relevant to which I would like to add a few points . I've been recording football games for almost 10 years, independently. That is, the League allows me to film the games. But, they're not paying me. Instead, my relationships/clients are the parents and coaches. Selling game DVDs and making highlight videos.
Business was good in the earlier years. It's all about offering a good product and building relationships. But then, a competitor has stepped in recently and starting filming the games, too. He got his foot in the door by one or two coaches who were able to secure him at a lower rate than my own. I didn't mind at first because my clients were secure and also the quality of my video is much better. Specifically, I shoot on a study tripod with a Canon XHA1S. But then, the competitor, with only a small handheld camera (on a mini tripod), starting (and still is) uploading the full games (whistle to whistle edits of the play) to YouTube and for FREE. This killed my business at every level. Even though the quality was/is not the same, parents were/are less willing to buy game DVDs from me if their kid can see the game on YouTube for free. I sent the Competitor a message asking him to deliver his product via DVD or a closed system, but he continues to upload to YouTube. He, in fact, has killed the market. Bad for me, and him too...
I wanted the League to step-in but it has its reasons for not picking winners and losers. And, it's probably better like this for me/us because some Leagues in my area won't even allow you to film a game from a professional camera. For example, they won't allow you to enter the stadium which is another very good conversation: Specifically, how does the law view and/or change the extent to which we have the right to film a game? Is the game we film a "public" or "private" event. In my case, the League is put on by Kiwanis, probably more public. The other AYF League, is probably more private. The point is, can independent freelancer's like me go and film any sporting event and try to make business someway, or upload the event to a public forum like YouTube? Or, do you need "the express written consent from the League" like the NFL?
In my opinion, not being a lawyer, I believe the League is the legal author of the content that you/we film. I mean, you/we can say we are the owners of the video because we produce the content but we are limited to some extent, I think, to claim Copyright infringement over our video products. If someone with more experience can chime on this it would be greatly appreciated.
Anyway, the overall situation and, more specifically, the situation of me losing business has really caused my a lot of emotional trauma. Now, though, I'm fighting back and feeling a little better. Specifically, I'm now also uploading the videos to YouTube for free. But the video is heavily watermarked with my own logo and also the League's. But, the logos are not so obtrusive, meaning that they don't get in the way of the principal viewing areas because, in part, we are filming without a lot of zoom, so that the coaches can see all the players on the field. In addition, I'm still offering game DVDs (without watermarks) because some parents, and even coaches, prefer to view/study their games on DVDs. You don't need an Internet connection. And, on top of these two options, I'm also offering the games (no watermarks as well) on HUDL for my advanced clients who know the benefits of HUDL.
Regarding HUDL, it's a great tool. But, it's purpose is not to ally with people like us. They don't care about us. HUDL only cares about the video. How they get it and from whom is irrelevant. What's more, when they have it, they own it! And yes, HUDL account users can download our video. What's worse, the HUDL logo goes on it. So, you can either watermark it before it's uploaded, which your Clients may not appreciate. Or, you can let it go clean. Either way, you have to be willing to lose control. And, remember that every version of your video requires another render and another upload. And, only one video can go up at a time. So, if your like me, uploading 6-10 games per week, it can be quite a task, and especially to get the video up and out FAST. For us, we're at the stadium for 10 hours on Saturday. By Sunday, we have the early games up on HUDL and YouTube. By Monday afternoon, all the games are up. But, it's really grueling and the payday in the end doesn't make it easily worth it.
In my case, I do it because I do it. Which is another way of saying I need it. Something coming in is better than nothing. I think videographers like us have to be humble too because it's very tough entering a market when your relationships with the League organizers is not the best.
More about HUDL, I've been able to make it work for me (so far) because I have all of the coaches of the League coaches in one account AND I control the emails and passwords. So it shows as a team account, but really all of my coaches of different teams are the same account. What's more, as part of my service, I assign the email addresses AND passwords that the coaches have to use to access the video. I do it through my website since I have unlimited email hosting. This way I can bring paying clients in and non-payers out. More important, I can see who and when is making highlight DVDs through HUDL and "I think" I may be able to see who is also downloading the video. This because the messages from HUDL are coming to me. Not the users. Because they're may damn emails!
And so, the bottom line, I am still surviving. Not making a ton but my reputation is important too. BUT, it comes at the expense of more work. More uploads. More edits. It's tough. But, I think I can win in the end because I don't think my competitor is going to be willing to continue week after week to maintain the few clients has that are probably or will likely be struggling to pay him over the long term (thanks to good 'ol me).
Hope this is helpful. I'm more than available to discuss further and without conflict since I'm in an international market outside the US. No competition worries.